Frequently Asked Questions
What is the difference between Family Dispute Resolution (FDR) and mediation? Family dispute resolution is essentially mediation for separating couples. A mediator can mediate any issue, however in order to mediate family law disputes they must be accredited as an FDR practitioner. FDR practitioners are specifically trained in Family law matters.
What are the types of FDR (mediation) available? Joint mediation Typically, mediation involves a mix of private meetings with the mediator, and joint meetings where both parties and the mediator are all present. The joint session gives you the opportunity to have direct communication with the other party, with Rachael facilitating the conversation. Joint meetings save time and allow in-depth exploration of issues as they arise. Shuttle Mediation Sometimes joint sessions are not appropriate. If one or both parties do not wish to talk directly to the other party then a shuttle mediation can be arranged. In a shuttle mediation you only meet with the mediator. The mediator goes back and forth between individual parties relaying information and discussing the topics. Whether a shuttle mediation is appropriate will be discussed at the individual intake session.
Do I have to Mediate? Children If you are in dispute about children the law requires that you make a genuine effort to resolve the dispute through FDR (mediation). If you cannot agree, and wish to proceed to court, then you must provide a 60 I certificate with your application. If you are seeking to change existing parenting orders then you are also required to try to resolve the matter through FDR before making an application to the court. There are some circumstances where an exemption to mediation can be sought. If the matter is urgent, there is abuse, or there are any safety concerns, then an application for an exemption to FDR can be sought. Property You are not required to attending FDR for property matters. That being said many people chose to go through mediation for their finances. Mediation is effective, saves a lot of time, and is more cost effective than going to court.
Is it confidential? FDR is protected under the Family Law Act. This means anything discussed during mediation is not admissible in court. It should be noted that if it comes to my attention that you or anyone else is at risk of serious harm, them I will be required to break confientiality and report it to the relevant authorities. In addition I am required to report any serious criminal activites.
What about if the other party doesn’t want to participate? If the other party does not want to participate Rachael will make two attempts to invite them to mediation. If the other party still does not want to attend mediation, then Rachael can issue a 60I certificate.
What are 60I certificates? If you wish to proceed to court for parenting orders then you will require a 60I certificate as proof the process of FDR was attempted.
A copy can be found here:
These certificates can only be issued by registered Family Dispute Resolution Practitioners. Essentially there are 5 different types of 60I certificates that can be issued 1. The other party failed or refused to attend FDR 2. The mediator decided that FDR was not appropriate for your circumstance 3. Both parties attended the mediation and made a genuine effort to resolve the dispute 4. One or both parties did not make a genuine effort to resolve the dispute 5. Both parties attended however the Family Dispute Resolution practitioner decided it was not appropriate to continue with mediation after consideration of matters in sub regulation 25 (2)
The relevant legislation can be found here:
What is the difference between a lawyer and a mediator? Parties require their own individually lawyer who will act in their best interests and give them specialised legal advice. A mediator is neutral to both parties can provide information, however is not allowed to provide legal advice. A lawyer who represents one party is not able to do FDR with both parties.
Do I need a Lawyer? In any separation there are a wide range of possible outcomes. Consulting a lawyer will allow you to understand how the law may apply to you and your unique situation. Speicalised legal advice will help you make informed decisions during mediation. Seeking legal advice is prior to the mediation is strongly recommended so that you are aware of your rights, your entitlements, and your responsibilities. Do I need to have my lawyer at the mediation? It is not necessary to have your lawyer present with you for the mediation. Some people however chose to have their lawyer attend the mediation to get legal advice throughout the process. Other people chose to contact their lawyer in one of the designated breaks. This is a personal choice and something you should discuss with your lawyer. The presence of a lawyer does not alter the process of the mediation.
What is child inclusive mediation? While all mediations that involve disputes about children are “child focussed”, child inclusive mediation indirectly involves the children in the process. It requires the consent of both parents. If you wish your child to be involved then they will be assessed by an independent Child Consultant prior to the mediation. The Child Consultant is specifically trained and will look at the needs and interests of the child. The Child Consultant will then meet with the parties at mediation as a representative of the child and convey information from their individual sessions with the child. Input from the specialist child consultant can provide valuable information to the parties regarding the needs of their children. If you wish to have child inclusive mediation then this can be discussed at your intake appointment or with your lawyer. Age, developmental needs and any other practical matters will be considered when deciding if child inclusive mediation is appropriate for your situation.
What is a parenting plan? A parenting plan is an agreement between the parents about the care of the children. It includes such things as: living arrangements, changeovers, schooling, travel and holidays, special occasions, communication and any other issues related to the care of the children. This plan can be written and signed however if one parent breaks the plan then there are no legal consequences. To make the plan legally enforceable the Parenting Plan will need to be lodged with the court to make it a Parenting Order.
Is the agreement binding at law? At the end a successful mediation you will have a Heads of Agreement document. This document needs be lodged with the court to make it legally binding. Typically, the Heads of Agreement summarises what has been agreed upon at mediation. This agreement can then be written up in more detail by lawyers and submitted to the courts as Consent Orders. When it has been submitted to the courts it is then legally binding.
How long will the mediation take? The length of the mediation will vary depending on the complexity and number of issues needing to be decided. Generally 4 hours for a parenting or property mediation and 8 hours for both. Ensuring you are well prepared for mediation will not only keep the time of mediation to a minimum, but will help avoid additional costs.
How do I prepare for mediation? Preparing for mediation is vital to a successful mediation. My key tips are: 1. Have all your documentation ready and on hand. 2. Get legal advice about your rights and responsibilites prior to mediation. 3. Get financial advice if appropriate. 4. Ensure you have thought through the key issues that you wish to be resolved. 5. Have a plan to manage your emotions. Overall remember that preparation is key.
What are consent orders? Consent Orders are when you formalise any agreement you have made by lodging it with the courts. It includes both Parenting Orders and any financial, property or maintenance orders you have agreed on. Consent orders make the agreements legally binding.
Why Zoom? Rachael choses to use zoom for the following reasons: 1. It is effective: After covid forced us to move more online, it was discovered that online mediation is just as effective, and sometimes more effective than face-to-face. 2. It is convenient: There is no travel time. You can do the mediation from the comfort of your own home, your lawyers office, or anywhere else that you feel comfortable. 3. Peace of mind and safety: You will not physically be in the same room or even the same building as the other party. This ensures you avoid any awkward, uncomfortable or unsafe interactions. 4. Cost effective: There is no added cost of room or venue hire.